Summary

Parliamentarians may now clearly be held personally liable
on account of State actions and decisions taken in fulfilling their
duties, and nominative sanctions may be imposed on them by third
States and international organisations through restrictive measures.

Moreover, members of the Parliamentary Assembly are threatened
with criminal or administrative proceedings for having exercised
their freedom of movement in breach of national legislation on entry
into the territory of some member States, this being in contravention
of the commitment undertaken by these States to guarantee the freedom
of movement and immunity of Assembly members.

Parliamentarians are included on “blacklists” drawn up by
States – or international organisations – which can accordingly
refuse to grant them a visa or entry to their territory. In accordance
with the principle of the rule of law, States shall ensure that
any ban or restrictive measures targeting individuals meets the
requirements of legal certainty and is accompanied by appropriate
procedural and judicial guarantees. However, parliamentarians should
be afforded additional safeguards so as to offset the harmful effects
which travel restrictions may have on the performance of their duties.

Parliamentarians do not enjoy any specific status or protection
under international law. In order to take account of the specific
nature of parliamentary action at international level and to protect
those performing it, national parliamentarians should be afforded
adequate safeguards in relation to third countries when travelling
abroad in the course of their duties and be covered by a fixed,
standardised legal framework of rights and privileges.

A. Draft resolution

(open)

1. In recent decades, international
action has become increasingly important in the activities of national parliaments,
with the growing number of interparliamentary co-operation organisations
and international parliamentary forums, the development of bilateral
and multilateral international parliamentary relations (friendship
groups, specialised interparliamentary networks), study groups and
fact-finding visits. There is furthermore an increasing demand for
interparliamentary co-operation, in particular in connection with
support for the democratic transition process in many States.

2. As a benchmark institution for interparliamentary co-operation
in Europe, the Parliamentary Assembly refers to its Resolution 1773 (2010) on promoting parliamentary diplomacy, in which it welcomed
the positive role played by the latter in preventing conflicts,
reducing tension between countries, facilitating dialogue and mediation.

3. The Assembly is seriously concerned about the current political
context in Europe, where the illegal annexation of Crimea by the
Russian Federation and its intervention resulting in a military
conflict in eastern Ukraine have generated a climate of mutual distrust
and revived security concerns within Council of Europe and European
Union member States, against a background of a “war of sanctions”.
The reciprocal direct sanctions and the resulting restrictions on
travel by parliamentarians are particularly harmful to parliamentary diplomacy.

4. The Assembly believes that the restrictive measures targeting
parliamentarians are not compatible with the very nature of parliamentarianism,
which requires relations to be maintained through dialogue. It is
afraid that the spread of individual sanctions involving the sharing
of responsibility between States and individuals supporting the
objectives of States is leading to an excessively moralistic trend
in international law and the system of international liability,
whereby, in the absence of any criminal liability, individual sanctions
are supplementing the traditional sanctions targeting States.

5. Moreover, the Assembly deplores the existence of national
“blacklists” of parliamentarians to whom the States which have drawn
them up can refuse visas or entry. It also denounces the cases involving
Assembly members who are threatened with criminal or administrative
proceedings for having breached countries’ legislation on entry
into their territory in exercising their freedom of movement and
travel. The Assembly underlines that, regardless of the legitimacy
of the assertion by certain States of their sovereignty or the integrity
of their territory in response to real or presumed threats, they
cannot absolve themselves of compliance with international law and
fundamental rights or the principle of the rule of law when they
adopt restrictive measures or retaliatory measures against individuals
in this connection.

6. The Assembly considers that, although international law in
principle grants States full sovereignty over their territory, entry
bans imposed by member States on parliamentarians amount to interference
in the latter’s exercise of their right to freedom of expression
enshrined in the European Convention on Human Rights (ETS No. 5).
With reference to Resolution 1894
(2012) on the inadmissibility of restrictions on freedom of
movement as punishment for political positions, the Assembly reasserts
that freedom of movement as a corollary of freedom of expression
must not be subject to restrictions or used as punishment for peacefully
expressing political opinions. Freedom of political expression enjoys
enhanced protection and should not be restricted without compelling
reasons.

7. The Assembly welcomes the fact that since the adoption of
its Resolution 1597 (2008) on United Nations Security Council and European Union
blacklists, the safeguards applicable to sanction procedures or
restrictive measures both at United Nations and European Union level,
in particular the procedures for challenging the measures and the
scope and intensity of judicial review of the measures, have been
duly improved. In this connection, it welcomes the judicial supervision
exercised by the Court of Justice of the European Union over decisions
providing for restrictive measures against natural or legal persons
adopted by the Council of the European Union and expects the Court
of Justice to clarify in its case law the extent and scope of the safeguards
concerning natural persons.

8. The Assembly considers that any sanction targeting individuals
must meet the requirements of legal certainty and be accompanied
by appropriate procedural guarantees. However, in the case of parliamentarians,
even if judicial reviews of bans or restrictive measures imposed
by third countries play a key part in protecting them against arbitrary
decisions, they should be afforded additional safeguards in order
to offset the harmful effects which travel restrictions may have
on the performance of their duties. The Assembly calls on Council
of Europe member States to provide foreign parliamentarians targeted
by restrictive measures such as inclusion on entry or visa blacklists
with a transparent listing and appeals procedure.

9. In this context, the Assembly calls on member States which
have adopted or may adopt restrictive measures to:

9.1. identify exhaustively the provisions
governing the restrictive measures, travel ban lists or special rules
on movement which could restrict foreign parliamentarians’ freedom
of movement;

9.2. make sure that there is a close link between a restrictive
measure imposed on a foreign parliamentarian and its intended purpose.
In particular, national security grounds must not be used to restrict
the access of a parliamentarian who is peacefully expressing certain
political positions;

9.3. notify foreign parliamentarians who are subject to bans
or restrictive measures of their existence and the reasons for them;

9.4. ensure that foreign parliamentarians are able at short
notice to submit their observations to the body that has imposed
or is threatening to impose a restriction;

9.5. suspend the execution of a ban or restrictive measure
while it is being challenged.

10. The Assembly is seriously concerned about the restrictions
or travel bans which certain Council of Europe member States have
imposed on Assembly members when performing their duties, in particular
in the case of election observation exercises or visits by rapporteurs
duly appointed by it, whether in terms of refusals to issue visas
or threats of arrest or prosecution under national legislation.
The Assembly unreservedly condemns these restrictions, which are
a flagrant violation of the General Agreement on Privileges and Immunities
of the Council of Europe (ETS No. 2) and the Protocol thereto (ETS
No. 10) and a breach of the undertaking to co-operate with the Assembly.

11. Under the Statute of the Council of Europe (ETS No. 1) and
the General Agreement on Privileges and Immunities of the Council
of Europe and the Protocol thereto, to which they all are parties,
Council of Europe member States have undertaken to recognise and
guarantee the freedom of movement and immunity of Assembly members
and to protect them against any legal proceedings or detention,
thereby ruling out both entry or visa bans and prosecution for failure
to comply with rules on entry or movement, for instance via legislation
on occupied territories.

12. The Assembly emphasises that, in accordance with the principles
of international law, no State may evade the obligations imposed
on it by international law or the treaties which it has signed by
relying on the provisions of its domestic legislation, of whatever
kind, including its own constitution. Accordingly, no Council of
Europe member State may derogate from the obligations it entered
into under the General Agreement on Privileges and Immunities and
the Protocol thereto by relying on provisions of its domestic law
to justify its failure to comply.

13. The Assembly therefore formally asks the member States to
abide by their commitment to:

13.1. guarantee
free movement of members of the Assembly. When a member State hosts
a meeting, a visit or an official event organised by the Assembly,
it must facilitate the participation of members of the Assembly
and issue the visas required for their entry into its territory;

13.2. guarantee the immunity of members of the Assembly against
any legal proceedings or measures for their arrest or detention,
except in cases of flagrante delicto.

14. Reiterating firmly the position which it took in Resolution 2078 (2015) on the progress of the Assembly’s monitoring procedure, Resolution 2063 (2015) on consideration of the annulment of the previously
ratified credentials of the delegation of the Russian Federation
and Resolution 2034 (2015) on challenge on substantive grounds, of the still unratified
credentials of the delegation of the Russian Federation, the Assembly condemns
the violation by the Russian Federation of the General Agreement
on Privileges and Immunities of the Council of Europe and calls
on the authorities immediately to release Nadiia Savchenko, member
of the Assembly.

15. The Assembly believes that it is now vital for national parliaments
to introduce good governance in the area of their international
activities if they wish to continue to operate legitimately through
parliamentary diplomacy. It calls on the national parliaments of
the member States to:

15.1. draw
up guidelines on the conduct of bilateral or multilateral interparliamentary
relations, setting out the aims, instruments and arrangements for
interparliamentary co-operation, as well as the institutional and
legal framework and the procedural or organisational aspects, or
general rules of conduct, the rules applicable to visits by parliamentarians
to other countries and, where applicable, the specific rights of
the relevant parliamentarians;

15.2. provide appropriate training for members of parliament
and the relevant secretariat staff concerning the preparation and
conduct of parliamentary visits to foreign countries;

15.3. support initiatives aimed at promoting at international
level the recognition of an international status for parliamentarians
and any related rights and obligations, which is vital to the development
of parliamentary diplomacy.

16. The Assembly also calls on the member States to:

16.1. sign and ratify the 1969 United
Nations Convention on Special Missions;

16.2. study without delay the question of the rights and obligations
of national parliamentarians from Council of Europe member States
travelling on their territory in order to grant them adequate safeguards for
carrying out their duties freely and effectively outside their own
countries, including freedom of movement and expression and personal
immunity;

16.3. in this connection, study the possibility of granting
national parliamentarians from Council of Europe member States travelling
on their territory on behalf of their parliaments the same immunities
as parliamentarians from their own countries.

17. Against this overall background of the internationalisation
of national parliamentary activities and given the greater responsibility
now borne by parliamentarians on account of their actions and decisions,
with the possibility of their being held personally liable under
international law, the lack of a specific status and protection
for parliamentarians under international law means that parliamentarians’
rights and privileges outside their own countries are precarious.
Account therefore needs to be taken of the specific nature of parliamentary
work at international level and the protection afforded to those
performing it needs to be strengthened, in particular in relation
to third countries. The Assembly therefore calls on:

17.1. the Inter-Parliamentary Union
(IPU) to develop and promote a set of rules applicable to parliamentarians
travelling abroad in the exercise of their duties so as to provide
an international framework for interparliamentary co-operation;

17.2. the United Nations International Law Commission to promote,
in its ongoing discussions, a comprehensive international legal
framework so that parliamentarians targeted by restrictive measures are
covered by a proper status in this connection, given the wide range
of different safeguards afforded to individuals targeted by sanctions,
which currently depend on the legal order of the international organisation
or State which imposed them.

B. Draft recommendation

(open)

1. The Parliamentary Assembly
refers to its Resolution … (2016) on the introduction of sanctions
against parliamentarians and, in particular, to the current situation
involving a growing number of restrictions on travel by national
parliamentarians from Council of Europe member States to other member
States.

2. The Assembly draws the Committee of Ministers’ attention to
the continued failure by certain member States to honour the international
commitments they have freely entered into, by hindering the Assembly’s activities
with obstacles to the exercise of its members’ duties.

3. Moreover, the growing internationalisation of parliamentary
work is highlighting the inadequacy of the international legal framework
in which parliamentarians perform their duties outside their own
countries. While it is clear that diplomacy is an inherently sovereign
function, it is also true that parliaments have gradually become
involved in it, entailing a need to recognise and protect the relevant
activities on an international level. National parliamentarians
should therefore be afforded adequate safeguards in relation to
third countries when travelling abroad in the course of their duties
and be covered by a fixed, standardised framework of rights and privileges
so as to meet the requirements of legal certainty.

4. The Assembly therefore calls on the Committee of Ministers
to:

4.1. demand that member States
honour their commitments under the Statute of the Council of Europe
(ETS No. 1), the General Agreement on Privileges and Immunities
of the Council of Europe (ETS No. 2) and the Protocol thereto (ETS
No. 10) and fully guarantee the immunity of members of the Parliamentary
Assembly and their free movement on their territory;

4.2. urge member States to grant, by means of unilateral declarations:

4.2.1. members of the delegations holding
observer or partner for democracy status with the Parliamentary
Assembly taking part in sessions of the Assembly and meetings of
its committees and, in general, in activities organised by them,
the privileges and immunities afforded to members of the Parliamentary
Assembly under the General Agreement on Privileges and Immunities
of the Council of Europe and the Protocol thereto;

4.2.2. national elected representatives from Council of Europe
member States travelling to or through their territory the immunities
afforded to the members of their countries’ own parliaments;

4.3. launch, prior to any standard-setting work and taking
account of current work by the United Nations International Law
Commission, a feasibility study on the creation of an international
status for parliamentarians and any related rights and obligations,
which could be carried out by the Council of Europe’s Committee
of Legal Advisers on Public International Law (CAHDI).

C. Explanatory memorandum
by Mr Díaz Tejera, rapporteur

(open)

1. Introduction

1. In April 2014, a group of Russian
parliamentarians, joined by the Chairs of the Assembly’s political groups
and other Assembly members, tabled a motion for a resolution entitled
“Introduction of sanctions against parliamentarians”, which was
referred to the Committee on Rules of Procedure, Immunities and Institutional
Affairs for report. The motion refers to the decision by the European
Union to ban a certain number of Russian parliamentarians from entering
or passing through its territory. Its signatories argue that the European
Union’s visa ban on foreign parliamentarians interferes, amongst
other things, with their freedom of expression. They therefore propose
that consideration be given to the compliance of these measures,
deemed discriminatory and unconstructive, with fundamental instruments
of the Council of Europe, including the European Convention on Human
Rights (ETS No. 5, “the Convention”), and, more generally, their
compatibility with “the nature of parliamentarism which presupposes
having relations through dialogue”.

2. Subsequently, other cases of potential sanctions against parliamentarians
were added to the initial referral in order that they might be considered
in this report: these cases raise the question of national “blacklists”
– lists of undesirable non-citizens, including parliamentarians,
to whom a State can refuse entry or a visa – and
the issue of criminal or administrative sanctions ordered by a court
in one country against parliamentarians subject to a foreign jurisdiction,
because they have violated the laws governing entry into its territory.

3. Lastly, the cases of Ms Nadiia Savchenko, a member of the
Ukrainian parliamentary delegation facing prosecution in Russia, and Ms Khalida Jarrar,
a member of the Palestinian partnership for democracy delegation,
were raised during the committee’s discussion of the report in connection
with the General Agreement on Privileges and Immunities of the Council
of Europe (ETS No. 2).

4. The rapporteur would like to thank Mr Antonios Tzanakopoulos,
Associate Professor of Public International Law in the Faculty of
Law of the University of Oxford, and Mr Conor McCarthy, a lawyer
in London, for information on a large number of legal points governing
sanctions in international law. The rapporteur also received a written
contribution from Mr McCarthy that he found very helpful in preparing
this report.

2. Issues and scope of this report

5. The multilateral nature of
international relations today and the proliferation of international
parliamentary forums and organisations for interparliamentary co-operation
have led to increasing foreign travel by members of national parliaments.
At the same time, parliaments have expanded their international
work (parliamentary friendship groups, specialist international
parliamentary networks) and are also called upon to decide on foreign
policy issues, which entails working relations with their counterparts
in parliaments abroad and travel, both formal and informal, beyond
national borders (fact-finding missions, study groups). The concept
of parliamentary diplomacy shows the growing importance of international
action within national parliaments, building on and complementing
State diplomacy. The Parliamentary Assembly has underlined the positive
role of parliamentary diplomacy with regard to preventing conflicts,
facilitating dialogue and promoting mediation.

6. The multilateralism of today’s relations requires adequate
safeguards for members of national parliaments when travelling abroad
or attending international meetings. However, sanctions and threats
of prosecution impose restrictions on the constituted authorities
and on the means of action and expression of parliamentarians, preventing
the enjoyment of certain rights and freedoms conferred on them,
foremost among which are freedom of movement and freedom of expression,
which are also fundamental rights protected by the European Convention
on Human Rights and its protocols.

7. Given the unprecedented growth in the system of multilateral
parliamentary co-operation since the end of the Second World War,
the question whether measures sanctioning parliamentarians are consistent
with the nature of parliamentarism itself extends beyond just Europe,
of which our Assembly is emblematic, and constitutes a far more
global issue.

8. The rapporteur recognises that while, in principle, international
law accords States the sovereign right to decide whether or not
to grant access to their territories, the act of refusing entry
to an individual solely on the grounds that he or she champions
certain political or ideological opinions might constitute an abuse
of law and a form of discrimination within the meaning of Article
14 of the European Convention on Human Rights. In its Resolution 1894 (2012) on the inadmissibility of restrictions on freedom of
movement as punishment for political positions, the Assembly condemned
such discriminatory practices, which also jeopardise the concept of
parliamentarism.

9. The present report sets out to clarify the status of parliamentarians
in relation to government actions, and the status of a national
parliamentarian in relation to a third State, by studying the provisions
that have made it possible to introduce sanctions despite the protected
status of parliamentarians. The report therefore seeks to determine
whether, ultimately, there are any statutory limits that can be
imposed on the work of parliamentarians, particularly in their relations
with third States, and whether there is a small core of specific rights
that national parliamentarians can invoke against third countries
whatever the circumstances.

10. Although the report does contain some observations on the
nature and scope of sanctions against individuals who happen to
be parliamentarians and the procedure followed in these cases, they
are intended solely to provide a better understanding of the issues
associated with the status of parliamentarian. This report intends
to answer the specific questions raised with regard to individual
nominative sanctions imposed by third States and international organisations
through restrictive measures. It will therefore not address, of
course, measures adopted by the Parliamentary Assembly against its
delegations or members, individually, under its Rules of Procedure,
since they are not part of a sanctions regime regulated by international
law.

3. Background
to the sanctions introduced against members of the Parliamentary
Assembly

3.1. Restrictive
measures adopted by the European Union in respect of actions undermining
or threatening the territorial integrity, sovereignty and independence
of Ukraine

11. On 1 March 2014, Russia’s Federation
Council, meeting in extraordinary session, took the decision to authorise
the President of Russia to deploy military forces on the territory
of Ukraine. Under Article 102.1.d of the
Constitution of the Russian Federation, the jurisdiction of the
Federation Council includes all decisions concerning possible use
of the Russian Federation’s armed forces outside its borders. This
decision was unanimously approved by the 90 members present.

12. The subsequent illegal annexation of Crimea by the Russian
Federation and its intervention resulting in a military conflict
in eastern Ukraine led the European Union to introduce a series
of restrictive measures, including visa or entry bans targeting
Russian parliamentarians and the freezing of certain assets.

13. Since the first list of sanctions entered into force on 17
March 2014, the European Union
has made regular additions to it. In all, among the 149 individuals
targeted, 27 Russian parliamentarians appear on the sanctions list, including
the speakers of the two chambers of the Russian Parliament and committee
chairs and vice-chairs. As far as the parliamentarians are concerned,
the reasons given for their inclusion on the list refer mainly to
the fact that they publicly supported the deployment of Russian
troops in Ukraine, including during the debate in the Federation
Council on 1 March, and, in some cases, initiated or supported the
legislation facilitating the annexation of Crimea.

14. In response, Russia’s Minister of Foreign Affairs established
a list comprising dozens of politicians banned from entering Russian
territory, including
several MEPs, national parliamentarians, as well as current or former members of the Parliamentary
Assembly.

15. On 10 April 2014, “in order to mark its condemnation and disapproval
of the Russian Federation’s actions with regard to Ukraine” the
Parliamentary Assembly resolved to suspend until the end of the
2014 session the Russian delegation’s voting rights and its right
to be represented in the Assembly’s governing bodies and to participate
in election observation missions. The
Russian delegation therefore took the decision to suspend its participation
in the Assembly’s work sine die.

3.2. Parliamentarians’
failure to comply with entry rules

16. In addition to reciprocal direct
sanctions connected with the conflict in Ukraine, mention should
be made of other cases involving members of the Parliamentary Assembly
who are threatened with criminal or administrative prosecution for
having exercised freedom of movement.

17. In February 2015, Mr Andrej Hunko, a member of the German
delegation to the Assembly, travelled to eastern Ukraine on behalf
of a non-governmental organisation (NGO), entering through an unauthorised border
crossing point from the Russian Federation. The
Committee on Rules of Procedure, Immunities and Institutional Affairs,
having studied the case on 24 June 2015 at the request of the Bureau
of the Assembly, noted that Mr Hunko had not travelled to eastern
Ukraine as a duly accredited member of the Assembly and that consequently
he was not entitled to the type of protection offered by the Statute
of the Council of Europe (ETS No. 1) and the General Agreement on
Privileges and Immunities regarding any sanctions that he might face
owing to his entry into Ukrainian territory in breach of Ukrainian
law. It
shall be noted that Mr Hunko again visited eastern Ukraine in November
2015, without the prior authorisation of the Ukrainian authorities.

18. In July 2015 a group of French parliamentarians, including
three members of the Assembly (Mr Thierry Mariani, Mr Yves Pozzo
di Borgo and Ms Marie-Christine Dalloz) went on a visit to Crimea,
presented as private, at the invitation of the Russian authorities.
The Ukrainian authorities were not informed of this visit, to which
they objected as soon as they learnt about it from the media.

19. Access to Crimea, which is still considered part of Ukrainian
territory by the international community, is governed by a decree
of the Ukrainian Cabinet that provides for prosecution in the event
of failure to comply with the prescribed procedure. Further to a request
from the Ukrainian Ministry of Foreign Affairs, the French parliamentarians
who visited Crimea have been included on the Ukrainian travel ban
list.

20. It should be noted that special provisions on entering and
travelling within part of a national territory are nothing new.
There are already a number of territorial disputes concerning, in
particular, Nagorno-Karabakh, Abkhazia (Georgia) and South Ossetia
(Georgia), to which Crimea and the occupied territories of the Donetsk and
Luhansk regions (Ukraine) may now be added. The European Commission
for Democracy through Law (Venice Commission) has had the opportunity
to comment on this type of legislation, which reflects national authorities’
determination to maintain the sovereignty and integrity of their
territory and which it does not consider incompatible per se with
international standards.

3.3. Detention
of parliamentarians

21. Detention represents an extreme
form of sanction against parliamentarians. By its very nature, the principle
of parliamentary immunity, recognised in many European States as
safeguarding the independence of the parliamentary institution,
precludes the arrest, detention, loss or restriction of liberty,
or prosecution of an elected representative without the consent
of the parliament of which he or she is a member.

22. The case of Ms Nadiia Savchenko, a member of the Ukrainian
Parliament and Ukrainian delegation to the Parliamentary Assembly,
who has been held in prison in the Russian Federation since June
2014, is of particular note in this connection. For over a year
now the international community has been taking action and making
considerable efforts to have her freed. In
January 2015, the Assembly called for her immediate release and
for her parliamentary immunity as a member of the Ukrainian parliamentary
delegation to be respected (Resolution
2034 (2015)), citing an opinion of the Committee on Rules of Procedure. The conclusions of
the committee and the Assembly confirming Nadiia Savchenko’s immunity
are contested by the Russian authorities. However, the Assembly
holds that since the competent Russian authorities did not send it
a request to waive Ms Savchenko’s parliamentary immunity, the Russian
Federation has breached its obligations under international law.

23. Another detention case referred to the Committee by the Bureau
of the Assembly is that of Ms Khalida Jarrar, a member of the Palestinian
partnership for democracy delegation, who was arrested on 2 April
2015 and placed in administrative detention in Israel further to
suspicions of involvement in the organisation of terrorist activities,
with no connection to her parliamentary work. The Committee on Rules
of Procedure concluded that Ms Jarrar could not rely on statutory
protection, since States not belonging to the Council of Europe
were not parties to either the Statute of the Council of Europe
or the 1949 General Agreement on Privileges and Immunities.

24. The rapporteur notes that the case of Ms Jarrar is being monitored
by the Inter-Parliamentary Union’s Committee on the Human Rights
of Parliamentarians, together with some thirty other cases of members
of the Palestinian Legislative Council belonging to the same political
organisation as Ms Jarrar. Our committee might draw on the experience
and observations of this body – which has been active since 1977
in protecting parliamentarians from abuse and investigating and
ruling on any human rights violations that they may have suffered,
either individually or collectively – to consider jointly with it
how to improve protection for parliamentary action.

4. “International
sanctions”: general observations

4.1. Definition
and basis of sanctions in international law

25. Although the term has punitive
connotations, a “sanction” refers to a legal system’s response to
an illegal situation or to conduct failing to comply with standards
which is beyond criminal law. In international law, the term “sanctions”
is reserved for measures taken by the United Nations under Chapter
VII of the United Nations Charter to maintain or restore international
peace and security.

26. However, the term is commonly used in a general sense to mean
what should actually be described as countermeasures or retaliatory
measures.

27. In international law, “countermeasures” cover all diplomatic,
economic, military, cultural and other measures taken unilaterally
or collectively by one or more States or an international organisation
in response to an internationally wrongful act by another State
in order to stop a violation of international law or to ensure compliance
with a law or fulfilment of an obligation by that State.

28. A countermeasure is a sanction which would be inconsistent
with the international law obligations of the State imposing the
measures in question but which is justified, when taken in accordance
with the requirements of the international legal regime for countermeasures.
This regime is set out in Chapter II of the Articles on the Responsibility
of States for Internationally Wrongful Acts, commended by the United
Nations General Assembly in Resolution 56/83 of 12 December 2001.

29. Countermeasures must be distinguished from acts which merely
amount to “retorsion”. Retorsion refers to sanctions which are inconsistent
with the imposing State’s international obligations. As the International
Law Commission Commentary on the Draft Articles on the Responsibility
of States for Internationally Wrongful Acts states: “Countermeasures
are to be contrasted with retorsion (i.e. ‘unfriendly’ conduct)
which is not inconsistent with any international obligation of the
State engaging in it even though it may be a response to an internationally
wrongful act. Acts of retorsion may include the prohibition of,
or limitations upon, normal diplomatic relations or other contacts,
embargoes of various kinds or withdrawal of voluntary aid programmes.”

30. “Retaliatory measures” therefore means acts that are certainly
unfriendly, or even injurious, but definitely permitted under international
law, in response to a previous act that may also have been unfriendly
but permitted or else was internationally wrongful.

31. A detailed consideration of the international regime on countermeasures
is beyond the scope of the present report. For present purposes,
the importance of the distinction between “countermeasures” and
acts of mere “retorsion” is that it means that the international
legal regime on countermeasures will often not be relevant in respect
of many sanctions.

32. Indeed, this will often be the case in respect of a travel
ban (including a travel ban on an MP), adopted either within a set
of restrictive measures or occasionally, since there is no general
obligation under international law to admit into a State’s territory
a foreign national, save in certain limited circumstances. States,
in general, retain discretion over their borders as an elementary
aspect of State sovereignty. A travel ban will therefore only amount
to a “countermeasure” under international law (and require justification
as such) where the receiving State is under some particular obligation
under international law to admit that person to its territory or
to permit that person to travel through its territory.

33. Lastly, we should note that countermeasures cannot affect
obligations for the protection of fundamental human rights and diplomatic
rights.

4.2. Legality
of sanctions in international law: an obligation erga omnes

34. All the measures taken by the
European Union against Russia could be described as countermeasures. Implemented
collectively by States that are not directly affected by the violation,
they take on a rather different outlook since they are aimed not
just at obtaining restitution, compensation or satisfaction in relation
to the right infringed but at protecting the international order
as a whole, securing respect for fundamental
rights and
protecting society’s ethical principles.

35. A countermeasure can be taken by an injured State against
an aggressor State, but the fact that it is not taken directly by
the injured party does not affect its legality, since it is an obligation erga omnes. An obligation erga
omnes entitles the international community to demand
compliance with a hard core of specific human rights. It
should be noted that the International Law Commission’s aforesaid
Articles on Responsibility of States for Internationally Wrongful
Acts contain no reference to an obligation erga
omnes, since at that time, in 2001, the Commission left
the decision up to individual States as to whether and how such measures
should be used. Nowadays, all the legal authorities agree that their
use is legitimate.

4.3. Restrictive
measures adopted by the European Union

4.3.1. Legal
framework

36. Political sanctions adopted
by the European Union are known as restrictive measures and are
adopted exclusively within the context of the Common Foreign and
Security Policy (CFSP). These measures may derive from implementation
of United Nations sanctions or be imposed on the European Union’s
own initiative (autonomous sanctions). It should be noted that the
European Union’s Common Foreign and Security Policy is based on
the principle of solidarity and convergence of action to which member
States have subscribed in order to safeguard the common values,
fundamental interests, independence and integrity of the Union and preserve
peace and international security.

37. Before resorting to restrictive measures, European diplomacy
employs a range of methods and instruments such as confidential
approaches, political dialogue, declarations, economic and financial assistance,
humanitarian action and human rights clauses. Restrictive measures
come into play when positive steps (both preventive and constructive),
to which the European Union gives priority, are defeated by persistent and
particularly serious human rights violations.

38. In the matter which concerns us here, the restrictive measures
adopted on 17 March 2014, to which additions have since been made,
have their legal basis in
Article 29 of the Treaty on European Union (TEU), which empowers
the Council to “adopt decisions which shall define the approach
of the Union to a particular matter of a geographical or thematic
nature”, and the implementing regulations adopted by the Council
on the basis of Article 215 of the Treaty on the Functioning of
the European Union (TFEU), which empowers the Council to adopt restrictive
measures against natural or legal persons whilst requiring it to
provide for the necessary legal safeguards. What we have here is an
intergovernmental approach (common position) backed up by an EU-level
approach designed to ensure uniform implementation (regulations).

39. In EU case law, if restrictive measures are directed against
a third country, they may include the country’s leaders and individuals
associated with them. The Court of Justice of the European Union
sees to it that there is a sufficient link between the individual
concerned and the regime targeted.

40. The rules on restrictive measures provide a number of safeguards
for the persons concerned, including the right to an effective remedy
and an impartial tribunal, protection of personal data, information
on the reasons for listing them, the possibility of submitting observations,
and the possibility of review.

41. The Council notifies persons and entities targeted by an asset
freeze or travel ban of the measures taken against them. At the
same time, it brings the available legal remedies to their attention:
they can ask the Council to reconsider its decision by providing
observations on the listing. They can also challenge the measures
before the General Court of the European Union.

4.3.2. Effective
judicial protection

42. In both the United Nations
and the European Union, the machinery of sanctions and restrictive
measures is constantly evolving, as are the safeguards surrounding
them. The situation now is very different from the context in which
the Parliamentary Assembly debated the report on the “United Nations
Security Council and European Union blacklists” in 2008.

43. If we look at the case law relating to an individual’s inclusion
on or removal from the European Union’s lists of restrictive measures,
we see that it has moved significantly towards respect for procedural guarantees.

44. The rapporteur notes that, generally speaking, the controversial
issue was not the denial of access to justice but
rather the non-existence of a separate procedure for removal from
“blacklists” and, secondly, the scope and intensity of judicial
review. Furthermore, before
the Treaty of Lisbon, decisions taken by States’ representatives
in the CFSP field were not subject to judicial review in the European
Union; only the regulations for implementing common positions were
open to challenge. If restrictive measures were adopted independently
by the European Union, the list of targeted individuals and entities
was appended to the CFSP decision. In
practice, if the Court of Justice annulled the regulations in so
far as they concerned a listed individual, the Council of the European
Union revised its decision accordingly. However, although this mechanism
made it possible to achieve the desired aim, it did not satisfy
the principle of legal certainty. Today, decisions taken in pursuit
of CFSP objectives no longer escape scrutiny by the courts of the
European Union.

45. In the Kadi II appeal, the Court of Justice held that “the
Courts of the European Union must … ensure the review, in principle
the full review, of the lawfulness of all Union acts in the light
of the fundamental rights forming an integral part of the European
Union legal order”. Those fundamental rights include respect for
the rights of the defence and the right to effective judicial protection,
recognised in the Charter of Fundamental Rights of the European
Union. If judicial review is to be effective, the lawfulness of
the grounds for the listing decision must be reviewed.

46. The Court of Justice went on to rule that “the essence of
effective judicial protection must be that it should enable the
person concerned to obtain a declaration from a court, by means
of a judgment ordering annulment whereby the contested measure is
retroactively erased from the legal order and is deemed never to
have existed, that the listing of his name, or the continued listing
of his name, on the list concerned was vitiated by illegality, the
recognition of which may re-establish the reputation of that person
or constitute for him a form of reparation for the non-material
harm he has suffered”.

47. The rapporteur notes that this case law is consistent with
the judgments delivered recently in connection with autonomous EU
sanctions, which recommend the same approach for all types of EU
sanctions.

48. In the light of the foregoing, the rapporteur considers that,
since the adoption of Assembly Resolution 1597 (2008), the safeguards surrounding the procedure for contesting
restrictive measures, including those concerning individuals, have
been duly improved regarding respect for human rights and the rule
of law. Certain questions nevertheless remain.

4.4. The
question of individual responsibility

49. One of the key questions that
the Committee on Rules of Procedure has had to consider for this
report is the responsibility of parliamentarians (and more generally
the personal responsibility of individuals belonging to State institutions),
through their membership of a corporate body, for legal acts presumed
to be lawful. In the case giving rise to this report, the incomprehension
of the Russian members of the Assembly targeted by EU sanctions
for having performed their constitutional role calls for some clarification.

4.4.1. Responsibility
owing to an internal legal act presumed lawful but in breach of
international law

50. The Russian parliamentarians
acted pursuant to a provision in the Constitution referring decisions
on use of armed forces of the Russian Federation in third States
to the Council of the Federation.

51. It is a long-established principle of international law that
a State may not avoid or circumvent international responsibility
on the basis of a rule of domestic law, whatever its character. Under international law, the conduct
of any State organ (and any person, group of persons or entity which
has that status in accordance with the internal law of the State)
shall be considered as an act of that State regardless what function
– legislative, executive, judicial or any other – the organ exercises,
whatever position it holds in the organisation of the State, and
whatever its character as an organ of the central government or
of a territorial unit of the State.

52. In this sense, the legality or illegality of an act, measure
or conduct under domestic law is irrelevant (insofar as international
law is concerned) to the question of whether international law has
been breached. This principle is set out in Article 32 of the aforementioned
ILC’s Articles on the Responsibility of States for Internationally
Wrongful Acts. Article 32 states that “[t]he responsible State may
not rely on the provisions of its internal law as justification
for failure to comply with its obligations under this part”.

53. This rule is fundamental to the international legal system
and is reflective of customary international law. Without this rule,
a State would often be able to defend conduct inconsistent with
international law on the basis that the acts in question were consistent
with (or required by) domestic law, thereby enabling the rules of international
law to be circumvented. This
principle applies regardless of the character or status of the domestic
law in question. It therefore also applies where a State’s actions
are dictated by constitutional norms which are inconsistent with
international law. The precedence of international law over constitutional
law was expressly stated by the Permanent Court of International
Justice (“according to generally accepted principles, ... a State
cannot adduce as against another State its own Constitution with
a view to evading obligations incumbent upon it under international
law or treaties in force”), as well as by its successor the International Court
of Justice.

54. A State’s obligations under international law remain unaffected
by rules or principles of domestic law, including, for instance,
a domestic rule providing immunity to parliament or creating a presumption
of legality as to the conduct of parliament.

4.4.2. The
individual’s position in the system of international responsibility

4.4.2.1. The
dual mechanism of State responsibility and individual responsibility

55. In traditional legal theory,
the State is held to be one and indivisible under international
law, which accepts that a State can commit an internationally wrongful
act but takes no account of the division of responsibility within
its internal system. State responsibility therefore exists, even
where a Constitution confers specific decision-making powers on
a particular organ of State, but it does not translate to individual responsibility
on the part of the members constituting it.

56. However, more recent legal theory – supported by developments
in international law, especially international humanitarian law,
and the extensive case law of the international courts – holds that
this view of the sovereign State as the sole subject of international
law is now out of date: individuals have become subjects of international
law, which means that this same law not only gives them rights (which
they can ask the courts to protect and acknowledge) but also imposes
obligations that it is able to enforce. Serious violations of such obligations
– extreme cases such as attacks, genocide and crimes against humanity
– render an individual criminally responsible under international
law, irrespective of the domestic law of the State concerned.

57. Several legal regimes targeting individuals coexist in international
law: a special United Nations regime on sanctions; a “sharing” State
responsibility, when individual behaviour involves acts or omissions
by the State; and individual criminal responsibility, whereby individuals
having committed international crimes, particularly in the context
of armed conflict, are punished.

4.4.2.2. The
problem of shifting responsibility from the State to the individual

58. The present case – sanctions
adopted individually against parliamentarians because of an internationally
wrongful act committed by a State – gives raise to yet another issue.

59. Here we abandon the legal debate on State responsibility derived
from individuals, and the question of complicity, to enter the relatively
unexplored realm of ethical inquiry seeking to discover how the
responsibility of the State and its organs – legal abstractions
– is passed on in practice to tangible subjects, namely individuals.

60. This inevitably takes us beyond the strictly legal framework
of our discussion – and therefore beyond the scope of this report.
The question nevertheless arises of the utility and effectiveness
of international “sanctions” against individuals assigned responsibility
for an internationally wrongful act: international law sees the
State solely as a single entity, and the position within the State
hierarchy of the organ that took the decision in breach of international
law does not affect attribution of responsibility to the State.

61. Nevertheless, studying the decision-making process behind
the internationally wrongful act in more political terms makes it
possible to identify the actual instigators and, prior to any “sanctions”,
single out the perpetrators – those individuals who, below the constitutional
surface, exercise the real power.

62. Some observers see individual sanctions as a moralistic tendency
in international law. Is not the contention that those citizens
who commit themselves to the objectives of the State share responsibility
for the State’s actions to further them indicative
of a change in the system of international responsibility in which,
in the absence of any criminal responsibility, individual “sanctions”
form an adjunct to standard sanctions such as economic pressure
or suspension of treaties?

4.4.2.3. What
about individual safeguards?

63. In view of these questions,
the rapporteur is inclined to think that the conventional system
of law relating to international responsibility might require a
few adjustments in order to produce a more democratic approach.

64. For example, conventional standard-setting in international
law takes no account of the principle of legal certainty, since
States, its only subjects, do not require the same safeguards as
individuals. The same is true of the European Union’s primary legislation,
which also forms the basis for “sanctions” against individuals.
It is only EU secondary legislation and domestic laws affecting
individuals’ rights and obligations that are required to satisfy
this principle.

65. However, the rapporteur takes the view that if a “sanction”
(whether countermeasure or retaliatory measure, national or international)
affects an individual, it must satisfy the demands of legal certainty.
This principle covers four related requirements: a basis in law,
accessibility, wording that is precise enough to enable individuals
“– if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which
a given action may entail and to regulate their conduct”, and protection against arbitrariness
in the form of adequate procedural safeguards.

66. The law must indicate with reasonable clarity the scope and
manner of exercise of the relevant discretion conferred on the public
authorities so as to ensure to individuals the minimum degree of
protection to which citizens are entitled in a democratic society.

67. It is clear that “sanctions” based on unfettered power pose
a problem in terms of legal certainty. In the Al-Nashif
v. Bulgaria case, concerning deportation of an individual
on grounds of national security, the Court held that “it would be
contrary to the rule of law for the legal discretion granted to
the executive in areas affecting fundamental rights to be expressed
in terms of an unfettered power. Consequently, the law must indicate
the scope of any such discretion conferred on the competent authorities
and the manner of its exercise with sufficient clarity, having regard
to the legitimate aim of the measure in question, to give the individual
adequate protection against arbitrary interference”.

68. In the present case, it should be noted that the legal provisions
underpinning visa and travel bans by both the European Union and
its member States are couched in very general terms, the latter
referring to national security and failing to specify conduct likely
to result in an individual “sanction”, particularly when arising
from wrongful conduct by a State.

69. Admittedly, the requirement of “foreseeability” does not go
so far as to compel States to enact legal provisions listing in
detail all conduct that may prompt a travel ban. By the nature of
things, threats to national security may vary in character and be
difficult to define in advance. For
this reason, the European Court of Human Rights assesses the legal
regime as a whole in order to ascertain whether the other elements
of legal certainty have been observed, thus compensating for the
lack of precision in the wording.

70. The EU regulation lists the individuals subject to restrictive
measures, gives the grounds and provides for a number of procedural
safeguards including judicial review. Are such safeguards, laid
down in a regulation, enough in themselves or is a broader international
legal framework required to ensure that an individual affected by
sanctions is entitled to proper status in this regard? This is a
question that the Assembly should definitely continue to consider
in a separate report.

5. Promoting
a sanctions-exempt status for parliamentarians

71. Parliamentarians have no specific
status under international law. They enjoy no international protection and
are not covered by the Vienna Convention on Diplomatic Relations
and other similar treaties. On the contrary, as the above analysis
shows, there are both national and international rules likely to
restrict any parliamentary role beyond the national level. This
situation is frustrating for the parliamentarians themselves, who
see it as a barrier to their work in the field of parliamentary
diplomacy. It is undoubtedly necessary to consider ways of improving
protection for parliamentary work in the international context.
The rapporteur has thus identified two elements that might constitute
the beginnings of a system of international protection upon which
parliamentarians could rely in the course of their international
duties: freedom of expression and (possible) immunity (whose scope
could be extended).

5.1. Freedom
of expression for parliamentarians

5.1.1. Freedom
of movement for parliamentarians as a corollary of their freedom
of expression

72. Parliamentarians’ right to
freedom of expression is so broad in scope that it is able to confound restrictions,
including retaliatory measures. In
fact, Article 10 of the European Convention on Human Rights can
render a State liable under the Convention for both visa and travel
bans and for threats of prosecution for violation of a travel ban,
since the European Court of Human Rights has developed the concept
of a “chilling effect”, whereby some legal provisions may have an
inhibiting effect on the exercise of legitimate rights.

73. The European Court of Human Rights held, in a series of cases
concerning MPs or other public figures who are refused admission
to a member State, that their right to free expression is engaged
by any such refusal. One example arises in the case of Piermont v. France, which concerned
the imposition of a travel ban by French authorities on a German
MEP.

74. This member of the European Parliament had been expelled from
a French territory (Polynesia) and banned from re-entering it after
having participated in an independence and anti-nuclear public demonstration. She
was subsequently refused leave to enter another French territory
(New Caledonia). The Court, noting that Ms Piermont “was not travelling
on business for the European Parliament”, held that there had been
a breach of Article 10 of the Convention, since her statement was
a contribution to a democratic debate, and that the prevention of
disorder and the upholding of territorial integrity did not justify
such an interference with her freedom of expression. The Court’s
recognition of a special status for freedom of political expression,
which enjoys reinforced protection and cannot be restricted without
compelling reasons, informs the debate about freedom of movement,
since the Court held that the measure prohibiting her from entering
the territory constituted “an interference with the exercise of
the right secured by Article 10 as, having been detained at the airport,
the applicant had not been able to come into contact with the politicians
who had invited her or to express her ideas”. With this judgment
the Court added a new dimension to freedom of expression, whereby it
necessarily entails freedom of movement so as to express and defend
one’s ideas.

75. Similarly, in the case of Adams
and Benn v. the United Kingdom (where the first applicant,
a former parliamentarian, had been prohibited from travelling to
the Westminster Parliament to speak to a group of parliamentarians
at the invitation of one of them), the European Commission of Human
Rights held that “[t]he exclusion order imposed on the first applicant
prevented him from attending a specific meeting in the House of Commons
to which he had been invited by the second applicant. In these circumstances,
the first applicant has been subject to a restriction on his freedom
of expression and to impart information and ideas and the second applicant
to a restriction on his right to receive information and ideas,
within the meaning of the first paragraph of Article 10”.

76. As a result, the imposition of a travel ban on MPs (even from
a foreign jurisdiction and even in circumstances where they have
no independent right to enter the jurisdiction in question) is likely
to engage the right to free expression of both the MP on whom the
travel ban has been imposed as well as any MPs to whom the banned
MP proposed to speak or engage in dialogue.

5.1.2. Towards
more safeguards against interference with parliamentarians’ freedom
of expression?

77. However, parliamentarians would
not be automatically protected by Article 10 if they wanted to travel,
to a third State, a conflict area or an occupied territory, including
at the invitation of their counterparts. For the right to freedom
of expression is not unconditional. Even if a travel ban on a foreign
MP “engages” free expression (e.g. falls within the scope of his
or her right to free expression), in itself this does not mean that
it is impermissible. It simply means that the travel ban in question
must be “justified” by a State by reference to the requirements
set out in Article 10.2 of the European Convention on Human Rights.
Among these requirements, the most relevant for present purposes
are the requirements of (1) legality (e.g. the requirement of legal certainty
and the related requirement of non-arbitrariness) and (2) the requirement
of proportionality (e.g. that the travel ban must not amount to
a disproportionate interference with an individual’s right to free
expression).

78. Ultimately it is thus usually up to the courts to review bans
and restrictions imposed on parliamentarians and to decide, for
example, whether there has been a violation of their right to freedom
of expression. At the national level, inclusion on a travel ban
list may be reviewed by the courts, as it may in the European Union, which
has an extensive judicial review system for restrictive measures
(see section 4.3.1 above).

79. Nevertheless, the rapporteur is not persuaded that the mere
existence of judicial review will protect parliamentarians from
arbitrary decisions. Given the detrimental effects of travel restrictions
on the work that parliamentarians carry out, adequate safeguards
must be provided for parliamentarians wishing to exercise their
right to freedom of expression beyond their national borders. In
particular:

cases in which
restrictive measures, the provisions governing travel ban lists,
or special rules on movement may restrict freedom of movement of
members of foreign parliaments must be identified, if not exhaustively
at least specifically;

members of foreign parliaments subject to sanctions in
a third State must be notified of the existence of these measures,
together with the reasons for them;

there must be a close association between a restrictive
measure imposed on a member of a foreign parliament and its intended
purpose. For example, national security grounds must not be used
to restrict the access of a parliamentarian who is peacefully expressing
certain political positions;

members of foreign parliaments must be able at short notice
to submit their observations to the organ that has imposed or is
threatening to impose a restriction (particularly if the authority
in question has the power to waive the restriction);

a restriction must be suspended while it is being challenged.

5.2. Parliamentary
immunity

80. To protect their independence,
guarantee their freedom of judgment, expression and decision and
guard against abuses of the State’s power of coercion, parliamentarians
in most member States of the Council of Europe enjoy specific immunity,
which is of two kinds: “non-liability”, meaning immunity from legal
proceedings brought for opinions expressed or votes cast in connection
with their parliamentary work; and “inviolability”, which is of
a personal nature and protects parliamentarians from arrest, imprisonment
and prosecution for offences relating to actions taken by them as
ordinary citizens. The safeguards offered by both types of parliamentary
immunity stem from the same need to ensure the independence of parliament
in performing its task and seek to guarantee the integrity and smooth
functioning of parliament.

81. The existence of immunity as an exception to the general law,
and the ethos of freely exercising their office, together with their
control over the executive, give parliamentarians the impression
that they will continue to enjoy the same privileges beyond national
borders. This impression is all the stronger in Europe, where States
have long been bound by obligations to guarantee freedom of movement,
whether through accession to treaties within the European Union
or under general obligations relating to basic human rights. However,
the reality is more complicated, and the safeguards on which parliamentarians
can if necessary rely for their “international missions” derive
not from their status of national elected representatives but entirely
from special arrangements.

5.2.1. Immunity
for members of national parliaments in another State

82. Generally speaking, national
legislation on parliamentary immunity is not considered by any of
the member States to apply abroad. Conversely, no member State has
specific provisions to protect the immunity of foreign parliamentarians
other than those arising out of customary international law or a
State’s accession to international treaties. Consequently, in a
foreign country national parliamentarians cannot rely on their national
immunity as protection against arrest, imprisonment or prosecution
for offences not connected with their parliamentary functions. Basically,
they are entitled only to the protection attaching to any other
citizen of their country.

83. However, travel in a foreign country by members of national
parliaments is not devoid of a certain number of rights and safeguards.
These differ depending on the circumstances.

5.2.2. Travel
as a State official

84. If national parliamentarians
travel as State officials within the meaning of the relevant conventions
or customary international law, they are entitled to extensive protection,
including personal inviolability, immunity from legal process (criminal
proceedings and, in some cases, civil and administrative proceedings),
immunity of premises and freedom of movement. Here the status of
State official is superimposed on that of parliamentarian. In other
words, it is the status of State official rather than parliamentarian
that determines conferment of diplomatic privileges and immunities.
In such cases, individuals who happen to be parliamentarians are,
by engaging in ad hoc diplomatic missions, acting on behalf of a
subject of international law.

85. For example, a parliamentarian may be a special envoy, an
observer or a delegate to an international conference or be on an
official, ceremonial or any other mission. However, all travel abroad
by parliamentarians does not automatically benefit from such protection.

86. The 1969 United Nations Convention on Special Missions lays
down strict criteria for what is termed a “special” mission: it
must be sent by one State to another State with the consent of the
latter for the purpose of dealing with it on specific questions
or of performing in relation to it a specific task, it must be temporary
and it must represent the State (Article 1). A special mission must
be described as such by the receiving State and the sending State.
Although the convention has not had a great number of accessions,
it is based on the rules of customary international law, which continue
to govern questions not regulated by this convention.

87. It should be added that parliamentarians who are members of
a permanent mission to a foreign State or international institution
cannot be considered part of a special mission.

88. On a different note, mention may also be made of the United
Nations Convention on the Privileges and Immunities of the Specialized
Agencies, which covers nine named United Nations specialised agencies
and refers to “representatives of members at meetings convened by
a specialized agency”. Thus, if national parliamentarians are sent
as experts by their governments to attend a meeting of a specialised
agency, they will be given a status modelled on diplomatic status
to guarantee their independence while carrying out their functions
in connection with the agency. These individuals will be entitled
to immunity from personal arrest or detention, inviolability for
all papers and documents, immunity from legal process and tax exemption
for their work for the agency.

89. The diplomatic rights to which parliamentarians are entitled
cannot be affected by any countermeasures taken against a State
(and covering parliamentarians). It should, however, be
noted that the receiving State may, without having to explain its
decision, declare persona non grata any
representative of the sending State for the purposes of the mission
or declare any other member of staff of the mission not acceptable
either before or after the mission has arrived.

90. To return to practicalities, it should be noted that fact-finding
missions and parliamentarians’ missions at the invitation of private
entities, including political groups and parties, would not be entitled
to special mission status.

91. A parliamentarian’s status of State official determines the
applicability and extent of immunity from foreign criminal jurisdiction.
At present it seems too early to comment on this subject, since
the International Law Commission has undertaken a wide-ranging study with the purpose of providing answers
in all the various fields of controversy and identifying the extent
of this immunity and the circle of individuals entitled to it. However,
it is unlikely that parliamentarians on private visits would be
entitled to immunity from foreign criminal jurisdiction.

5.2.3. Travel
at the invitation of an organisation having a headquarters agreement

92. This is another situation in
which the status of official guest takes precedence over the status
of parliamentarian. A number of international organisations have
headquarters agreements requiring the host State not to impede access
to the organisation’s headquarters by its members or invited experts.

93. The Council of Europe and the United Nations Educational,
Scientific and Cultural Organization (UNESCO) possess such agreements. There
is currently some discussion as to whether such a clause also guarantees
immunity from prosecution and detention for wanted persons or subjects
of arrest warrants. However, it undoubtedly rules out travel bans
by States.

5.2.4. Clarification
concerning the diplomatic passport

94. It is common for possession
of a diplomatic passport to be confused with entitlement to various
kinds of immunity, including immunity from legal process. But immunity
is based on the position held by the individual possessing it. A
diplomatic passport is a travel document that facilitates travel
for its holder. The fact that this document does not confer certain
privileges is owing to the wide range of rules governing its issue
and the variable scope of individuals entitled to it, which, at
present, are entirely at the State’s discretion.

95. As far as parliamentarians are concerned, some countries have
strict rules, including the United States, where diplomatic passports
are issued to national elected representatives only if they are
attending international conferences as official government representatives.
In other countries, automatic issue is conditional on holding a
special office within parliament, such as Speaker or Deputy Speaker,
or Chair of the Foreign Affairs Committee (Austria, Belgium, Cyprus,
Denmark, France, Spain and Sweden), being a member of a delegation
to an international institution (Switzerland) or being a member
of government (Finland). Other parliamentarians can usually request
a diplomatic passport if they can produce proof of an official mission. Lastly,
in a large number of European countries the right to a diplomatic
passport is granted to all national elected representatives (Andorra,
Czech Republic, Georgia, Germany, Greece, Hungary, Latvia, Lithuania, Luxembourg,
Republic of Moldova, Netherlands, Poland, Portugal, Romania, Russian
Federation, Slovak Republic, Slovenia, “the former Yugoslav Republic
of Macedonia”, Turkey and Ukraine).

96. It should be noted that it is the capacity in which a parliamentarian
is travelling rather than his or her travel document that will be
considered when determining the scope of guarantees.

5.2.5. Unofficial
travel as a parliamentarian at the invitation of the host country

97. Parliamentarians may sometimes
have occasion to travel to a foreign country without their journey
being regarded by their home country as official or representing
an institution or the government. However, by issuing an official
invitation or accepting a visit, the authorities are implicitly
agreeing to guarantee a parliamentarian’s legal and physical protection.
In such cases, the parliamentarian’s status will depend not on any
particular treaty but on the practices adopted by the country concerned.
Usually a parliamentarian will be entitled to personal immunity
at the very least, or even the same treatment as the host country’s
members of parliament.

5.2.6. Unilateral
declarations

98. Under international law, States
have a tool known as “unilateral declarations”, which enable them
to accept or create rights or obligations or, conversely, limit
or exclude them. Regardless of their wording or designation, such
unilateral declarations create for States which voluntarily accept
them international legal obligations in relation to one or more
States or other international entities. This tool therefore makes
up for the lack of a statutory framework or the inability to draw
one up on time. For instance, under the European Union’s Common
Security and Defence Policy, unilateral declarations are used to
safeguard the immunities and privileges of the staff of missions
in host States pending the negotiation and conclusion of the agreements
on the status of the relevant missions. If applied to the case of
foreign elected representatives, including delegations holding observer
or partner for democracy status with the Parliamentary Assembly,
this practice would make it possible both to strengthen the protected
status of parliamentarians on official journeys without having recourse
to the negotiation of new treaties or the revision of existing ones
and also to take account of the internal context specific to the
Council of Europe.

5.2.7. Travel
as a member of an international assembly

99. In 1939, only three international
parliamentary institutions were in existence: the Inter-Parliamentary Union,
the Nordic Inter-Parliamentary Union and the Commonwealth Parliamentary
Association. There are now over a hundred formal and informal parliamentary
forums, with differing legal forms,
structures and remits. Some are governed by national private law
while others were set up under international treaties concluded
by the States concerned. The greater the extent to which a body
is integrated into the international intergovernmental context,
the more it benefits from diplomatic immunities and privileges,
which will be recognised in a headquarters agreement, a treaty or
its protocol.

100. Privileges and immunities, including the free movement of
members of assemblies in fulfilling their duties, cannot be guaranteed
without the explicit consent of the State or group of States concerned.
This privilege derives from the discretionary power of States to
control their borders, as enshrined in public international law, although
this discretionary right could be restricted by the imperatives
of humanitarian law and fundamental rights.

101. A discussion of the Protocol on the Privileges and Immunities
of the European Union is perhaps less pertinent to this report given
the special arrangements for movement that exist between member
States of the European Union. The General Agreement on Privileges
and Immunities of the Council of Europe is relevant, on the other
hand, since the extensive guarantees offered by signatory States
concerning free movement of members of the Parliamentary Assembly
and their protection from arrest and prosecution thwart both visa
and travel bans as well as prosecution for failure to comply with
rules on entry and movement, such as the legislation on occupied
territories.

102. The Committee on Rules of Procedure has already been called
upon to examine cases of restriction on movements of members of
the Parliamentary Assembly and has here emphasised the existence
of an obligation by member States to recognise and protect both
the immunity and freedom of movement of members of the Assembly: in
the case of members duly accredited by the Assembly, under the Statute
of the Council of Europe and the General Agreement on Privileges
and Immunities of the Council of Europe and its Protocol, all Council
of Europe member States have undertaken to guarantee free movement
of members of the Assembly; consequently, when a member State hosts
a meeting or an official event organised by the Assembly, it must
facilitate the participation of members of the Assembly, issue the
visas required for their entry onto its territory and also guarantee
the immunity of members of the Assembly against any legal proceedings or
measures for their arrest or detention in keeping with its obligations
under public international law.

103. Thus, by means of this Council of Europe agreement, the members
of the Russian delegation included on the EU sanctions list are
nevertheless able to participate in the Assembly’s work: Mr Naryshkin
and Mr Slutsky were able to travel to Paris in September 2014 to
attend a Monitoring Committee meeting and to Strasbourg for the
opening of the Assembly’s 2015 session.

104. However, although the exceptional arrangements provided for
in this type of agreement enable parliamentarians subject to bans
to take part in international events and thus maintain dialogue
with their interlocutors, the rapporteur deplores the fact that
the European Union’s restrictive measures, together with entry ban
lists and threats of prosecution for having exercised freedom of
movement, are inevitably, and regrettably, restricting a number
of interparliamentary contacts, which may undermine the effectiveness
of parliamentary diplomacy, encourage division and be an impediment
to seeking a solution to the problem that gave rise to the sanctions
in question. It should also be pointed out that other parliamentary
forums do not have treaty instruments of this sort and all bilateral
and multilateral dialogue with them has been suspended.

105. In conclusion, the rapporteur believes that debate should
continue, on the basis outlined above, in both the Council of Europe
and other international spheres to ensure that the specific nature
of international parliamentary work is taken into account and that
those who perform it are given adequate rights and safeguards.

6. Expanding
the code of conduct for members of the Parliamentary Assembly?

106. The rapporteur takes note of
the growing number of disputes involving members of the Parliamentary Assembly
laying claim to their freedom of movement at the risk of national
criminal or administrative proceedings, whether or not these members
were accredited by the Assembly for travel (or attempted travel) in
a member State of the Council of Europe. It is clear that these
cases are directly connected with travel by these parliamentarians
in areas of “frozen” conflict, namely occupied or seceding territories
not recognised by the international community.

107. Doubtless an international organisation such as the Council
of Europe, and an interparliamentary forum such as its Assembly,
may be expected to offer a more appropriate framework for debate
than national parliaments themselves in order to determine the rights,
obligations and conduct of parliamentarians – and the obligations
of States – in this very specific context in which arguments are
made in good faith, on both sides, for compliance with international
law. At the same time, the commitment of member States to co-operating
with the Assembly is called into question when these States impose
travel restrictions on members of the Assembly travelling officially
for the latter.

108. The rapporteur also wishes to raise the role and limitations
of the code of conduct for members of the Parliamentary Assembly
in the handling of recent cases involving members of the Assembly
who had infringed national legislation in connection with their
parliamentary work but unrelated to their duties in the Assembly.

109. It is therefore necessary to continue the debate, doubtless
beyond the ambit of this report, in order to study the advisability
of, on the one hand, expanding the code of conduct as far as obligations
of members of the Assembly are concerned, and, on the other, producing
guidelines on official travel by members of the Assembly in Council
of Europe States as far as member States’ commitment to co-operate
is concerned. This was the remit given to the committee on 31 August
2015 by the Bureau of the Assembly, which asked it to prepare an
opinion on challenges to member States’ co-operation with the Assembly
regarding freedom of movement for members of the Assembly.

7. Proposals

110. Under international law, sovereign
power is vested solely in the State, and this affects the ability
of members of parliament to act beyond the national framework. Nevertheless,
the internationalisation of parliamentary work over the past few
decades has impelled States gradually to abandon the traditional conception
of diplomacy. This fact, discussed above, highlights the inadequacy
of the international legal framework within which national parliamentarians
are working, owing, in particular, to the lack of an international
status for parliamentarians and the fragmented nature of their rights
and freedoms outside national borders. This is prejudicial to the
principle of legal certainty and fuels uncertainty as to the existence and
extent of parliamentarians’ rights and privileges in relation to
third States.

111. Now that parliamentarians are increasingly accountable for
their acts and decisions, with the possibility that they may be
individually responsibility under international law, it is time
to discuss the introduction of an international status for parliamentarians
in international public law. The discussions being held by the United Nations
International Law Commission on immunity of State officials from
foreign criminal jurisdiction, for example, are undeniably a step
in this direction.

112. The rapporteur recognises that such discussions could come
up against the basic objection that this special status might override
other considerations such as the principles of non-discrimination
and equality before the law. Why introduce special protection for
parliamentarians? Firstly, because conferment of such international
status is based on the need to guarantee the independence of every
national parliament in performing its role. Secondly, if a parliament’s
actions can create State responsibility, should that parliament not
in turn benefit from the immunity of the State to protect its members
more durably?

113. In the light of the foregoing, the rapporteur would propose
that the Assembly:

recommends
that member States:

a. study the question of the
rights and obligations of a foreign country’s national elected representatives travelling
in their countries in order to grant them adequate safeguards for
carrying out their duties freely and effectively beyond their national
borders, including freedom of movement and expression and personal
immunity, as required by the European Convention on Human Rights
and the case law of the European Court of Human Rights;

b. guarantee members of foreign parliaments subject to restrictive
measures, such as inclusion on a visa or travel ban list, effective
judicial protection by making provision for a transparent listing
and appeal procedure;

encourages the Inter-Parliamentary
Union to develop and promote a set of rules applicable to parliamentarians
travelling abroad on a professional basis so as to foster interparliamentary
international co-operation and support the engagement of national
elected representatives in parliamentary diplomacy;

calls on national parliaments to:

a. step up advice and support
for the conduct of journeys by parliamentarians outside their own
countries by putting in place guidelines and, where applicable,
appropriate training for members of parliament and the departments
concerned;

b. continue internal discussions on ways of making institutional
policy more consistent and implementing strategy in the area of
the development of parliamentary diplomacy.

114. The rapporteur also believes
there is a need to invite the Committee of Ministers to:

a. remind Council of Europe member
States of their commitments under the General Agreement on Privileges
and Immunities and the Protocol thereto (ETS No. 10), and their
active role in facilitating travel by members of the Parliamentary
Assembly;

b. launch a feasibility study on the creation of an international
status for parliamentarians, which could be carried out by the Council
of Europe’s Committee of Legal Advisers on Public International
Law (CAHDI);

c. urge member States, in order to make up for the shortcomings
in the international regulations, to make use of unilateral declarations
so as to expand the immunities and privileges of foreign elected representatives
on official journeys in their territories.

115. Lastly, the Committee on Rules of Procedure might consider
the advisability of expanding the code of conduct for members of
the Parliamentary Assembly and producing guidelines on official
travel by members of the Parliamentary Assembly in Council of Europe
member States. The rapporteur believes that these very specific
issues should not be developed further in this report but should,
at least initially, be addressed in an opinion for the Bureau of
the Assembly in conjunction with the Bureau’s request to examine
challenges to member States’ co-operation with the Assembly regarding
freedom of movement for members of the Assembly.